During an in camera inspection on the surveillance privilege the trial judge must not allow the state attorney to participate, must elicit the exact location from the officer, and conclude with giving the defense a chance to rebut.

Gist

The police arrested defendant after an officer conducting undercover surveillance observed him engage in three suspected drug transactions. He was sentenced to 4 years in pri

None of the alleged buyers were stopped. Defendant subsequently filed a motion to compel disclosure of the police officer’s surveillance location, arguing that disclosure was necessary because the State’s case against him hinged on the ability of the officer to observe his alleged drug transactions.

Defendant contended that disclosure was the only means to ensure that he could investigate the officer’s ability to observe his alleged actions and effectively exercise his constitutional right to confrontation.

In Camera Inspection

After defendant’s case was called, the trial court immediately held an in camera hearing with Chicago police officer John Frano and an assistant State’s Attorney, outside the presence of defendant and defense counsel.

In the hearing, the assistant State’s Attorney examined Frano, asking him several questions about the day in question, including some unrelated to his surveillance location. Frano generally discussed his surveillance location, including his approximate distance from defendant, whether his location was on an occupied or unoccupied property, and his ability to observe defendant from his location.

Frano, however, did not reveal his exact surveillance point.

The court also examined Frano, asking him several questions, but similarly did not ascertain his precise surveillance location.

Trial Court’s Holding

At the conclusion of the hearing, still in the presence of only Frano and the assistant State’s Attorney, the trial court indicated that it would deny defendant’s motion “based on the officer’s testimony” and would have the hearing transcribed and sealed.

Specifically, the court said:

“based on the testimony of the officer that there are public safety concerns involved here, and also that given the details of the number of officers present and the facts that were relayed, I do not feel that the defendant is required to know this information in order to fully be able to represent [his] interests at trial. I certainly will allow full cross-examination for distance, elevation, lighting, weather conditions, and any obstruction. So I don’t feel the disclosure is necessary.”

Facts

Frano was the lone surveillance officer while Ramos, Bonnstetter, and Garcia were enforcement officers.

Frano dressed in plainclothes and conducted surveillance on the 700 block of North Trumbull Avenue. Frano testified that, at around 6:40 p.m., while it was getting dark outside, he observed a man, identified in court as defendant, standing on the sidewalk in front of a residence at 734 North Trumbull Avenue. Another man approached defendant, engaged him in a conversation and handed him an unknown amount of money. Defendant walked into a narrow gangway adjacent to the residence, proceeded toward the rear of the residence, reached down, and removed an item from the ground. He returned to the sidewalk in front of the residence and handed the man the item, who then left the area. Based on these transactions, which Frano testified he had an unobstructed view of from approximately 50 to 100 feet away, he believed that defendant was selling drugs.

Frano observed two more individuals engage in identical transactions with defendant.

Although Frano had binoculars, he did not “know exactly when [he] was using [them] for that particular situation.”

During Frano’s cross-examination, defense counsel asked him if he was conducting surveillance from an “elevated” position, but the trial court sustained the State’s objection on the basis of “the point of surveillance.”

Defendant Arrested

After witnessing the third suspected drug transaction, Frano called for Ramos to pick him up, left his surveillance post, and instructed Garcia and Bonnstetter to detain defendant. Frano lost sight of defendant for 30 to 40 seconds but eventually observed him being detained by Garcia and Bonnstetter approximately 150 feet north of 734 North Trumbull Avenue. Frano was certain that defendant was the same individual he had observed during his surveillance. Bonnstetter subsequently arrested defendant and found $175 on him.

Meanwhile, Frano and Ramos went to the rear of the gangway adjacent to the residence at 734 North Trumbull Avenue. There, they both observed a white strip of tape with four tinfoil packets attached, each containing suspect heroin (.1 grams).

Defendant’s Closing Arguement

During closing arguments, defense counsel argued that, because Frano observed the individual conducting the suspected drug transactions from 50 to 100 feet away at a time when it was getting dark outside, his ability to observe was “diminished.” Counsel further highlighted that, after Frano left his surveillance post, he lost sight of the individual he saw engage in the transactions. Altogether, counsel contended there was reasonable doubt that defendant was the individual Frano observed during his surveillance.

Surveillance Privilege

The purpose of the surveillance location privilege is to protect surveillance sites, which are valuable resources to the police, and to protect the safety of police officers and cooperative private citizens.

In determining whether the privilege applies, the trial court must balance the defendant’s interest in preparing a defense against the public interest in keeping the location of surveillance secret.

Two fundamental considerations must be kept in mind:

First, the more important a State’s witness is to the State’s case, the more important the defendant’s right to cross examination concerning the surveillance location becomes. Thus, if the State’s case is built almost exclusively on the testimony of one surveillance officer, disclosure of the surveillance location must almost always be required.

Second, if there is no question about a surveillance officer’s ability to observe or there is contemporaneous video evidence, disclosure is not required.

Some Basic Procedure

In determining whether the privilege applies, the trial court may conduct an in camera hearing, outside the presence of the State and the defense. At this hearing, the surveillance officer “must” disclose his surveillance location. The State has the initial burden of proof to demonstrate that the privilege applies, which it may carry with testimony from the officer that his surveillance point was located on private property with the owner’s permission or in a useful location whose value would be compromised by disclosure.

If the State meets its burden, the burden of persuasion shifts to the defendant to demonstrate that the privilege should not apply.

In order for the defendant to compel disclosure when the issue is raised before trial, “the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret.”

Among the relevant factors the trial court should consider are the offense charged, the potential defenses, and the importance of the privileged information.

The in camera hearing is intended to be a limited inquiry of the surveillance officer, not expanded into the functional equivalent of that officer’s trial testimony.

Here, when the trial court allowed the scope of the in camera hearing to expand into matters unrelated to Frano’s surveillance location outside the presence of defendant and his attorney, defendant’s constitutional right to confrontation was violated. While the in camera hearing should be limited to potentially privileged matters, that is not to say that testimony on matters unrelated to the surveillance location is never proper when determining whether the privilege should apply. In fact, such testimony, especially when the motion to disclose is raised pretrial, may be helpful for the court’s ultimate balancing of the public interest in nondisclosure against the defendant’s interest in preparing a defense. So any such testimony must be elicited with defendant and his attorney present in open court.

Who Goes Back There?

This court has been less than clear about whether it is permissible for the State to appear and participate in the in camera hearing. The case law is unclear on whether the prosecuting attorney should be allowed to be present at the in camera inspection.

These decisions demonstrate that either both parties or neither party should be present during an in camera proceeding to determine whether certain evidence is privileged.

Thus, at the point in the burden-shifting approach when the in camera hearing occurs, the defense has no right yet to know of the surveillance location. Our case law has universally found that the defense may not appear at the in camera hearing. It follows that, because the defense may not appear at the hearing, the State may not as well.

Instead, the court must conduct the in camera examination with just the surveillance officer, limiting its inquiry into only matters related to the surveillance location.

Analysis

Two errors occurred here.

Location Not Disclosed

During the hearing, Frano revealed his surveillance location generally but did not identify his specific surveillance point, contrary to the directive of our case law.

We require this disclosure because the precise surveillance location is one of the critical facts necessary for the court to properly apply the burden-shifting approach and ultimate balancing of the public interest in keeping the surveillance location secret against the defendant’s interest in preparing a defense for trial.

Without knowing exactly from where the officer conducted his surveillance, the court cannot satisfactorily determine whether limiting the defendant’s cross-examination to only such matters as distance, lighting, weather conditions, and the existence of any obstructions will allow the defendant to adequately present his defense.

Moreover, the entire purpose of having the hearing in camera outside the presence of the defense with the transcript of the proceeding sealed is so the officer can reveal his exact surveillance location. Consequently, without determining the exact surveillance location, the primary rationale for proceeding in camera is defeated, and the court cannot sufficiently balance the competing interests, thus resulting in the court being unable to effectively exercise its discretion.

Defense Attorney Excluded

Therefore, in this case, the trial court also erred when it allowed the State to not only appear during, but also participate in, the in camera hearing.

Burden Shifting Approach

Lastly, we observe that the trial court did not properly apply the requisite burden-shifting approach.

Once Frano completed his testimony, while in the presence of only the State, the court indicated that it would deny defendant’s motion based on his testimony. Subsequently, in the presence of both parties in open court, the court denied defendant’s motion without allowing him an opportunity to argue why the privilege should not apply. Under the required burden-shifting approach, once the State satisfies its initial burden of proof, the burden of persuasion shifts to the defendant to overcome the State’s application of the privilege.

Here, the trial court denied defendant’s motion without providing him the opportunity to meet his burden of persuasion to show that the privilege should not apply.

Holding

In light of these fundamental deficiencies in the trial court’s application of the surveillance location privilege, it was not in a position in which it could properly exercise its discretion.

Thus, we find the court abused its discretion to the manifest prejudice of defendant. Accordingly, we must reverse defendant’s conviction and remand the matter for a new trial. We also must vacate the trial court’s order allowing the State to invoke the surveillance location privilege.

If upon remand, the State seeks to invoke the privilege once again, that determination must be made by the court after a proper limited in camera hearing outside the presence of both the State and the defense where it ascertains Frano’s exact surveillance location.